İÖG (Turkey) / FoRB Initiative Interview with Hülya Üçpınar on the Right to Conscientious Objection in Turkey

25-04-2013

/ İÖG

"Conscientious objection has been on the Turkish agenda for 20 years. From the beginning until now truly many things have changed", says lawyer Hülya Üçpınar.

İÖG (Turkey) / FoRB Initiative – Can you describe the general picture of conscientious objection in Turkey? How many conscientious objectors are there? How many have declared their conscientious objections? How many are there who are incarcerated?

Hülya Üçpınar – There is no clear information on the number of conscientious objectors. In 2009 there was a report and together with the number of female conscientious objectors the total was said to be 130 but since that time there have been many more, both male and female. But the numbers unfortunately are not being kept any longer.

İÖG (Turkey) / FoRB Initiative – How do we categorize the reasons of those who are conscientious objectors to military service in Turkey? What reasons do they give for their refusal to serve?

Hülya Üçpınar– I believe the practices until now have shown that the Turkish conscientious objectors fall into four categories.

– Those with an anti-militaristic perspective. The group that makes known the concept and actions of conscientious objectors are the anti-militarists.

The anti-militarist supporters spring from the defense of two ideas, that militarism is a culture and that this culture is fed mainly by the military. They define militarism as a general concept, not one that is either leftist or rightist and refuse to accept the division of wars into “just” and “unjust.” Because whether they are just or unjust wars as well as the politics of war in terms of things like military service are reasons for this culture being renewed or recreated.

Since military service which springs from the activity of training to kill, conscientious objectors have adopted the principle of non-cooperation with the military and its leaders and institutions. The complete rejection of cooperation opens up the possibility of defining conscientious objection as absolute (total objection). In other words they see civilian service as military service and thus also reject civilian service.

Besides male conscientious objectors the first female conscientious objectors fall in this group.

– Those who reject serving a certain army.

Those in this group are those with a conscientious objection stance that relies on the separation between just and unjust war. They do not criticise militarism nor the formation of a general army. These conscientious objectors say they will not serve the Turkish military. I don’t know what their policy on civilian service is.

– Jehovah’s Witnesses

Jehovah’s Witnesses are those with a Christian faith. They reject armed military service based on the biblical verse in the Book of Isaiah that says “nor will they train for war anymore.”

– Muslim/nationalist

Muslim objectors say that the Quran does not make participation in jihad obligatory and that in Islam the essence of conflict resolution is negotiation. In wars against Muslims however they must adopt a position that is on the side of “justice” but I don’t know what that means in practice.

Among the Muslim conscientious objectors there are women as well.

İÖG (Turkey) / FoRB Initiative– If there were alternative options of civilian service, how would/could that solve the issue, if it would?

Hülya Üçpınar– Even if there is an alternative service and even if they do not meet the necessary criteria there are many males who, rather than doing something within the military chain of command, would gladly do an alternative/public service. There are many forums associated with military service; when you enter and look at the forums, it is possible to see the actual demands of present soldiers.

İÖG (Turkey) / FoRB Initiative – Is conscientious objection in Turkey seen as a human right? How do human rights organizations, the media, society and politicians see this issue?

Hülya Üçpınar – Conscientious objection has been on the Turkish agenda for 20 years. From the beginning until now truly many things have changed. In the early days and even for many years there were ongoing arguments with the left opposition parties and the NGOs about the just/unjust war concept. It was said that militarism is a culture and was reproduced with these perspectives. But anti-militaristic supporters’ arguments and conscientious objection were found to be seriously utopic. They were looking at us as a bit marginal.

But now, at this stage, NGOs and human rights groups are unified, I believe, with regard to conscientious objection as a right. I say “I think so” because I have not heard the opposite opinion. Nothing else can be said about the European Court of Human Rights’ (ECtHR) Bayatyan v. Armenia decision and decision concerning Turkey following that.

When discussing the media…we are talking about a broad range. The decisions of the ECtHR have been in the press a lot. You know, the objectors showed up at the TV forums. The media are sympathetic to the objectors but I’m not sure how much or deeply they have thought about this issue of conscientious objection as a right. Maybe some journalists see conscientious objection as a right, but to broadcast that generally is hard.

As for society I can say directly “no, they do not see it as a right.” But that does not mean they don’t want to accept it as a right. In fact whether or not it is a right or not is not their concern. As a firm pragmatist, in my opinion, what they want is for them/their children/their relatives to have the opportunity to be torn from the military. And if the obligatory military service for those who come from rural communities is a socializing environment, it is also an environment of violence. By looking at this issue from this perspective, those who object to the making of the military service in this manner support the conscientious objection or more accurately the changes that will be made as a result of the conscientious objection.

As for politicians… Last year we met with the Constitution Reconciliation Commission at the Parliament and presented a document. Rıza Türmen from CHP (Republic People’s Party) participated with us. After our presentation he contributed to our submission with his comments. AKP’s (Justice and Development Party) Ahmet Iyimaya was the leader of the group meeting with us and he said: “If there is a war and everyone says I am not going to fight because I am a conscientious objector, who will defend our country? It is too early for conscientious objection.” So he is conservative and from the ruling party. But Altan Tan, representing the BDP (Peace and Democracy Party), was there but he did not say anything to us or to Ahmet İyimaya.

What I am saying is that is not possible to give a comprehensive determination with regard to the issue of politics. But if I were to generalize, I think I could say that the number of those who see conscientious objection as a right would be very small. Almost all of the politicians are nationalist, conservative and militarist, all rolled into one. To expect a different approach is really difficult.

In addition, we should point out the fatwa of the Directorate of Religious Affairs saying that “conscientious objection is not religiously acceptable.”

İÖG (Turkey) / FoRB Initiative – Turkish Economic and Social Studies Foundation’s (TESEV) Field Study Findings on the Expectations from the Constitution present a very interesting picture with regard to military service and conscientious objection. According to the results 69.7% of Turks believe that military service should be obligatory, 6.2% believe it should be obligatory but done in social service arena, 6.7% believe that conscientious objection is a right and 17.4% believe the military ought to be professional. How do you evaluate this picture? This information indicates that 30% and maybe more may support conscientious objection and alternative means of service. Can the conscientious objection movement reach these people? Or how can these people affect the politics of this issue?

Hülya Üçpınar – In the previous question I stated my opinion that I thought society did not believe conscientious objection was a right. The research results of TESEV are in the same vein.

But in order to evaluate what these answers mean, one must assume that those who participated in the poll knew the relationship between, for example, the necessary character of military service and the armed or civilian service or the relationship between a professional army and the conscientious objection. I think that many people, including conscientious objectors, are not aware of this and related data. If you told people that even if the constitution permitted conscientious objection as a right, that the obligatory nature of military service would not be lifted, people’s approach would be very different. Or if you said that civilian service would need to planned within social security system as a wage earning opportunity with social security benefits, the approach would be different again.

But in any case the possibility of 30% of the people supporting alternative service or conscientious objection is a wonderful possibility. When we started 20 years ago we were maybe 20 people, maybe now we are around 200 (or less) who are working actively and we achieve these results. 30% would be a strange and wonderful number.

There is one other “but;” the conscientious objector movement does not reach these people nor is it working to inform those who are willing to explain themselves within this arena. The 30% number is those who have this idea from the media. Although the conscientious objectors have not really worked at this issue, to still see a reflection of conscientious objection at that level is both surprising and of course pleasing.

For this group to reach its potential political effect, I think they need to work at informing people in a systematic way. Who will do this? Unfortunately I cannot give you a name.

İÖG (Turkey) / FoRB Initiative – What are the hindrances to accepting the right to conscientious objection? How can this be overcome? Who are the people or groups who will simplify this process?

Hülya Üçpınar – The most basic hindrance before conscientious objection is of course militarist policies. When you establish nation state politics on the definition of “Turkishness” and “soldier nation” then the result of a sanctified military and army is natural. With this sanctified position, as with all other sanctified positions, there is immunity and the creation of a taboo area. This sanctity finds itself directly in military penal laws, those laws that criminalize speech against the state or the military and definition of crime against the moral person of state/military.

Beyond that we find this sanctity disguise in Article 76 of the Constitution concerning the criteria for election to the parliament. In addition we find it in the Military Code No.111 Article 93, and Law on Civil Servants No. 657 Article 48(5).

Of course, there would be some significance to the removal of legal provisions that refer to the untouchable and absolute nature of military service but since the legislative provisions are identical to political approaches, there needs to be a change in the political makeup first.

It is clear that we can not expect an immediate enlightenment on this subject in the political arena. But in the first years when AKP became the ruling party, the results of the conflicts between the military and AKP caused a bit of a change in the eyes of the politicians and society with regard to the taboo character of the military. No matter how much there is a serious repercussion in society over the idea of having high ranking commanders prosecuted in the Ergenekon case, these cases showed people that soldiers, even the highest ranking ones, are not politically immune to prosecution. This naturally created a crack (a fracture) in the perception that the state is one with the military and the nation. The 2006 ECtHR’s decision with regard to conscientious objection and Osman Murat Ülke, the Council of Europe Committee of Ministers keeping the subject on the agenda and the recognition by the ECtHR on 2011 July of the right to conscientious objection and the judgments held against Turkey all contribute to filling in the crack or the fracture. Of course the work done by the Soldiers’ Rights initiative, the disclosure of human rights violations in the military and especially the suicides cause the crack/fracture to be wider.

I believe this is the road to follow. There needs to be some work done that show that the military is not a family home, it is something that creates hierarchy and violence and is a mechanism which is discriminatory and separates young male citizens from their social/economic and political life. At the same time there needs to be simultaneous work done to show that total rejection of military service (including civilian service) is a right and how civilian service needs to be organized.

I think the first line actors in this process need to be the ones who work for conscientious objection, military rights groups and human rights agencies. The first line would then aim to influence the second line work for the the international mechanisms, the political creators and the 30% we talked about above. There is lots of work in other words.

İÖG (Turkey) / FoRB Initiative – The Council of Europe for a period of time has wanted/expected Turkey to provide legislation with regard to the conscientious objection issue. Turkey has said they were working on this issue. Lastly the Prime Minister said “conscientious objection is not on our agenda.” What do all these things say to us? And can you share your expectations of the new constitution?

Hülya Üçpınar – Actually the situation is very ironic. One and a half years have passed since the ECtHR’s Bayatyan decision, over a year since the Ercep decision. It has been seven months since the Tarhan decision. Regarding the Ülke judgment, it was treated as if ECtHR’s decisions automatically become domestically and the arrest decision was lifted (which had been actually decided after the Ülke judgment). On the other hand the decision of the High Court of Appeals with regard to Tarhan contains no references to conscientious objection.

In addition, when we look at the Tarhan and Ülke processes together with the cases of other four Jehovah Witnesses and Feti Demirtas which were pointed out in the briefing prepared by the Association of Jehovah Witnesses we reach this conclusion: the lifting of the arrest order for Osman Murat Ülke is nothing more than rendering invisible the results of the follow up on the acute case before the Council of Europe Committee of Ministers, namely the Ülke judgment. The violations are still wide spread.

In addition the lack of conscientious objection in the 4th Judicial Package and Justice Minister Ergun’s statements that tied the regulation on conscientious objection to the establishment of a professional military makes the situation more ironic from the perspective of the conscientious objectors. What they are saying is essentially you wait until the state renews and restructures national military policy. This declaration which openly accepts the fact that there is no preparation of a legal arrangement, does not provide hope for the conscientious objectors on the establishment of general or comprehensive individual measures.

As far as the new Constitution is concerned our submission to the Constitution Reconciliation Commission asks for the right to conscientious objection to be recognized under the right to freedom of religion, belief and conscience. But how much do I hope these expectations will actually be carried out? I think at this stage I am not hoping that there will be a regulation concerning this right but I am also hoping that in the near future an arrangement for conscientious objection would be done.

İÖG (Turkey) / FoRB Initiative – Two military courts have reached interesting decisions with regard to conscientious objection. A Muslim in Malatya had his application rejected yet a Jehovah’s witness had his right for conscientious objection accepted by the military court in Isparta? Can you comment on those decisions?

Hülya Üçpınar – The decisions for Muhammed Serdar Delice and Barış Görmez actually say nothing at all about conscientious objection. What they say is that legal rules are not consistent and established, that the prosecutors and/or judges in connection with personal initiative make very different and contradicting decisions on this issue. We run across this in different areas; for example after the Ünal Tekeli /Turkey (on the wife being able to use her maiden name after marriage) decision of the High Court of Appeals different courts took different decisions. Local courts were able to give positive decisions but the decisions of the High Court of Appeals following appeals by prosecutors or lawyers who lost, are very depressing. Of course, when it concerns the decisions of the ECtHR, then the issues becomes the interpretation and application of the Article 90 of the Turkish Constitution. The Constitutional Court’s interpretation of Article 90 has been one of the reasons for courts giving different decisions. Despite the Constitutional Court’s decisions the local court’s positive and exceptional decisions to, in actuality, accept conscientious objection or the ability of a wife to use her maiden name have to be accepted with appreciation. The application of law is however, much too important to be left to one or two good district attorney’s or judges, especially if the subject is personal freedom.

İÖG (Turkey) / FoRB Initiative – In the new judicial package there are changes expected in Turkish Criminal Code Articles 220 and 318. How will these changes affect those who speak, argue and fight for conscientious objection rights?

Hülya Üçpınar – There is no connection whatsoever between the Article 220 and conscientious objection. It is also not a provision applied to those who fight for conscientious objection.

But Article 318, both the present one and the one in draft, is very risky. In addition to the actions of conscientious objectors everybody who works in this area comes face to face with the threat of Article 318. Because military service has been associated with sanctity and an absolute character and any action or expression of thought with regard to military service will be seen as dangerous and punishable. The greatest handicap in those crimes defined in relation to thought is the definition of others actions connected in relation to one’s statements. The fact that others’ “possible” actions of “escape from military service” are tied to one’s statement shows how absurd this has become.

The thing that really needs to be done is the removal of Article 318. Because it is not possible to make it a better arrangement by pulling in things from here and there.

İÖG (Turkey) / FoRB Initiative – Lastly, the UN Human Rights Committee decided in the Atasoy and Sarkut decisions that Turkey’s 18th amendment was broken. And a few months before the Turkey Civilization and Social Rights Agreement report with regard to practices was evaluated. The Human Rights Committee asked a lot of questions about conscientious objection. Do you believe this decision will open the way for any change in Turkey?

Hülya Üçpınar – I sat in on the meetings of the Human Rights Committee and made a presentation on conscientious objection. The Committee’s Concluding Observations included a good piece on conscientious objection and for the first time has been included among the topics that will be followed up on next year.

Despite the Atasoy-Sarkut decisions and the Concluding Observations unfortunately the decisions coming from the United Nations Mechanisms do not have the ability to change things in Turkey by themselves. In fact, the Turkish delegation’s answers in the report presented to the Human Rights Committee were completely frivolous and they made only general comments in the meeting.

The decision of the United Nations Mechanisms will only carry weight when they are quoted in the judgments of the ECtHR or a part of, reports that have political significance such as the European Commission’s reports.